HTML Transcription © F.Coakley , 2009
[From Mann Land Tenure etc, R. D. Farrant ,1937]
1. Whilst Charlemagne was on the throne of the Western Empire, there was pouring from the confines of Norway a great invasion, which lasted till the middle of the ninth century, and resulted in the erection of Norwegian kingdoms in Ireland and the establishment of Norse sway over Orkney, Shetland, the Hebrides and Mann. Indeed Mann and the Hebrides ---Sudr-eyjar, Sodorenses or Sodor, i.e. South Isles as distinct from the Nord reyjar, the North Isles, i.e. Orkney and Shetland -were the kernel of the Norwegian settlement in these parts of Europe.
It is probable that at a very early period from the time of the first coming of the Vikings the Island fell under the rule of a race of chieftains or kings, whose rule lasted from about the middle of the ninth to the middle of the thirteenth century, and during these 400 years Scandinavian customs and institutions bit so deeply into the life of the nation that to this day they are to be found embedded at the root of its legislative, judicial, and social system.
2. One of the most striking characteristics of Norse - as of all Teutonic rule - was the annual assembly of the freemen of the nation at a hill or mound in some central place in the open air, where the laws were proclaimed, legal disputes decided. and the various elective officials appointed,
Another very characteristic institution was the division of the land in a certain number of administrative districts more or less equal in size or population, and the subdivision of these again into an equal number of smaller districts, by the freeborn inhabitants of which the legislators were chosen.
At the annual assembly, a body of legislators chosen by their fellows from amongst the chieftains or priestlords of each administrative district, who formed, as it were, an executive committee of the Alpingi for legislative. and judicial purposes, occupied the mound itself, accompanied by their assessors, under the presidency of a person chosen for his knowledge and skill in the laws and customs of the country.
Bearing these facts in mind we turn to an exammation into the institution known in Mann as Tynwald.
3. Alone in the countries once under the sway of the all-conquering Norsemen, the Ancient Tynwald (N-ping-volli=- Parliament field) is still in full life and vigour in Mann.
That meetings of the people were held at Tynwald in the days of the Norse sway we know from a passage in the Chronicle of Mann under date A.D. 1237.
The passage runs as follows : -.
' On the 25th day of the month of October, the third after the arrival of the sons of Nel, a meeting was held of all the people of Man at Tynwald.'
This place is also mentioned, in an entry under date 14th February, 1228-9, as the site of a great battle between the two kings who laid claim to Man, and who fought one with forces from the Northside and the other from the Southside.
4. Every year on July 5th O.S. June 24, the Christian Feast of the Nativity of St. John the Baptist, and the day of the older pagan festival to celebrate the Summer Solestice), the twenty-four Keys, with the King's Governor, the Bishop of Sodor and Mann, and the members of the Legislative Council. assemble on Tynwald Hill near the village of St. John's in the parish of German. There the Statutes passed during the preceding session of the Legislature are proclaimed or ' promulgated ' to the assembled people.
A Manx Statute or ' Act of Tynwald,' though passed by the Legislature and assented to by the Crown, had no force as law till it has been thus promulgated.
St. Johns is situated midway betwixt Douglas and Peel in a valley which runs across the middle of the Island from sea to sea, a stone's throw from the steep ascent of Slieau Whallian 'the Hill of the Courts'). which frowns upon the valley from the south.
Tynwald. Hill is an artificially made mound (possibly originally a tumulus or barrow), about 12 feet high and roughly 256 feet in circumference at its base.
It is round, and tapers to the summit, }r hich is flat and measures about 16 feet 9 inches īn diameter.
From the base to the summit there are three terraces each about 3 feet in height, measuring in width 12 feet, 9 feet and 6 feet respectively.
Round the base, and separating it from the fair ground, is an earthen wall, where formerly stood a circle of large upright stones. Some of them were still erect in the latter part of the eighteenth century.
Within then living memory these standing stones had been surmounted by others placed transversely. somewhat after the fashion of the circle at Stonehenge
5, The proceedings at the hill follow the order prescribed at a 'Tynwald held in 1422, when the Deemsters and the twenty- four Keys, in answer to Sir John Stanley 11 (then King of Mann), gave evidence of the custom of old time 'how you'( the King of Man)' shall be governed at Your Tynwald.'
The description is obscure in parts, but certain outstanding features may be noted as agreeable to the unbroken practice followed to this day.
And first we note that it was an assembly of all the Commons of Mann.
Next that it was held in the open air and that certain officials and ' the worthiest of the land ' occupied positions upon a mound ringed for seats.
And thirdly. that its purpose was to proclaim the laws to the people.
So far we have an institution unquestionably similar to the customary Moot or Thing of fhe Norsemen of early days.
6. But it is equally unquestionable that such a custom was not confined to Scandinavians.
What, then, are the further incidents of this unique ceremony
Upon the top of the mound sits the King's representative with his visage to the east, the sword of Mann before him. holden with the point upward.'
On his left hand, upon a chair of equal state, in a position equally elevated, sits the Bishop of Sodor and Mann.
Grouped around the Governor and the Bishop are the members of the Legislative Council, consisting of the Clerk of the Rolls, who used to take the minutes of the proecedings and keeps the records of the official acts, the Attorney-General whose office requires no explanation), the Receiver-General, whose duties, once so important (for he collected and accounted for all the revenues), are now non-existent, and with them, up to 1922, were the Archdeacon of Mann and the Bishop's Vicar General. Now these ecclesiastical officers have been removed and in their place are four representatives elected by the Keys for differing periods and two nominees of the Lieutenant-Governor.
In front of the chair of state, and occupying a position formerly midway between the Governor and Bishop and Council, and the twenty-four Keys, stand the two Deemsters of Mann,' the repositaries of the Common Law, one of whom proclaims to the assembled people a resume of all the Statutes enacted by the Legislature in the preceding session in English and Manx. Latterly the Deemsters have ceased to be Manx Scholars and so someone else (the Chief Coroner or Archdeacon) repeats his words in the Manx language.
On the three lower rings of the mound sit the twenty-four members of the House of Keys, the assent and signatures of thirteen of whom are essential to the validity of every Bill before it can become an Act.
Interspersed with the Keys sit the Captains and the Vicars of the seventeen parishes into which the Island is divided -
A pathway about 366 feet long and 48 feet wide leads from the mound due east to the Chapel of St. John the Baptist, where the first part of the ceremony is held, and this path is, in accordance with custom, strewn with green rushes.
On the flat fairground, outside the mound pathway and chapel, the people stand and listen to the promulgation of the laws, and used to indulge in feasting and fairing in the numerous booths erected all around.
Tynwald day being a general holiday, it has ever been the custom for, and was up to recent times an honorable obligation upon, all Manxmen to assemble at Tynwald, a custom now, alas, dying out.
8. After divine service in the chapel, a procession is formed in the following order :-
Four Sergeants of Police
Four High bailiffs
Seventeen Captains of the Parishes
Summer-General
Clergy- in file
Mayor of Douglas
Twenty-four Members of the House of Keys
Members of Legislative Council
Lord Bishop
Sword Bearer
Lieutenant-Governor.
On arrival at the hill the Deemster calls upon the Chief Coroner (the Coroner of Glenfaba Sheading) to fence the Court. This he does in ancient form as follows :-
' I do fence this Court in the name of our Sovereign Lord the King, and I do charge that no person do quarrel, brawl or make any disturbance, and that all persons do answer to their names when called. I charge this andience to witness that this Court is fenced; I charge this audience to witness that this Court is fenced; I charge this whole audience to witness that this Court is fenced.'
We pause here to note the thrice repeated challenge and, by comparison, the Icelandic Saga stories of the summons of a defendant to attend at the Thing Courts, which had to be repeated three times in identical language in order to be lawful. The Coroner delivers up his wand of office to the Governor, and the other Coroners, one for each of the six sheadings, follow suit. The Governor delivers them to the succeeding Coroners, who kneel while receiving them, and are sworn in by the Deemster.
Then follows the promulgation as before described, and after the laws are promulgated the Deemster calls for three cheers for the King and the procession reforms to the chapel.
A short sitting of the Tynwald Court is then held, the Keys sitting in the apse, the Governor and the Bishop and the Legislative Council, who form the upper house of the Legislature, sitting in the chancel.
9. Now let us turn to Iceland, the Iceland of the tenth to the twelfth centuries after Christ, whose ancient legislature and courts, modelled upon those of the mother country by the fugitives from King Harold Fairhair's centralizing rule, are so graphically and so minutely described in the Sagas.
10. On a wild and desolate spot 40 miles to the north-east of Reykjar-vik, the Icelanders held their national Alpingi. Near the banks of a frightful precipice stood the lawinount (N. Log-berg) with a mystic doom-ring of huge volcanic stones fixed in the earth.
The field or plain in which the Alpingi was held was called the Ping-vollr (Thingvalla), and the sitting lasted for sixteen days commencing at Midsummer.
It was regarded as disreputable for a freeman not to attend it, and people of all classes pitched their booths on the Thing- valla plain on such occasions.
Chieftains were accompanied by retainers, litigants by witnesses and compurgators.
Tradesmen also came to exchange goods, and there was no lack of stalls for sale of provisions.
Here there also assembled the Logretta, or judicial and legislative committee or Alpingi, who occupied the Log-berg within the Dom-hringr (Doom-ring).
The ancient Logretta of Iceland was composed of 144 members, or 145, if we include the Log-sogumadr (speaker or promulgator of the law), who sat at the top of the hill of laws and presided over its deliberations.
Of these persons, thirty-six, the mystic ' thrice twelve,' ' who were to judge in all cases,' composed the Logretta proper. They were originally elected annually from amongst the Godar or Pontiff chieftains of the Godord.
The Godord was a land division corresponding to tile Hreppr (or parish) of Christian times, and was a district looking to the Hofud-hof, or Head Temple, as its ecclesiastical and civil centre.
There were, in Iceland, three of these Godord in every Thing (Soknar-ping), and three Things in each of the four Fjordungr (or Quarters) into which the Island was divided.
As each Godord returned a member to the Logretta it follows that the correct number of Logrettu-mennr (logretta- men) was, as we have seen, thirty-six.
But, as time went on, the north quarter of the Island acquired another Thing with three Godord, to each of whom a member was allotted, and as, to balance this disparity, three more members were given to each of the other Quarters, the full number of the Logrettu-mennr became forty-eight or, with the Log--sogumadr, forty-nine.
Each Logrettu-madr had two expert assessors to advise him on points of law and practice, one of whom sat on the bench, or terrace, above him, and the other on the terrace below, thus filling up the three rows of the mound
These assessors raised the actual number of persons sitting on the mound, along with the speaker of the laws, to the number formerly mentioned of 145.
After the introduction of Christianity the two bishops sat with the Log-sogumadr and appear to have exercised a considerable influence on public affairs.
As Iceland was a republic, the Log-sogumadr was the only official of Government, and even his powers were limited to the days on and after midsummer day that the Alpingi lasted in session.
11. When one bears in mind what is known of the origin, composition, and mode of election of the Icelandic Logretta, the Manx Tynwald begins to emerge into a clearer light.
This Island was, and indeed in popular language and for judicial purposes still is, divided, not into four quarters as in Iceland, but into two districts of almost equal area known as the Northside and the Southside.
The distinctions between these two districts and the inhabitants of each are illustrated in the Manx Statute Book. The ancient tradition as to their division betwixt the two races, the Northmen of the Isles and the Manx, is related in the Chronicle (ante page 5.)
In the earliest book of the spiritual laws the distinction between the widow's right in the Southside and the Northside is referred to.
In the customary laws dated 1577 is a provision having reference to the presenting by the Enquest jury of any thief dwelling in the Southside who may be received by any one dwelling on the Northside.
The jurisdictions of the two Deemsters and of the term Courts of Common Law are regulated for the Northside and Southside by Statute.
Each of these districts is divided into three sub-districts known as sheadings (Shedungr, N. Settungr, or sixth part). Each sheading, with an exception, is divided into three smaller districts now called parishes.
So far the analogy is exact.
True it is that one of the six sheadings contains only two parishes, probably from want of space to form another, but so, as we have seen, the north quarter in Iceland contained four Things, whilst the others contained only three.
And as in Iceland, for all purposes of the law, each quarter was treated as containing three things only and as all returning thirty-six members (although, to correct the practical inequality, members were added to the quota of each other quarter to make them equal in voting powers, but the actual forty-eight was treated as a legal thirty-six) so in Mann, following out the analogy, we find that, although of the three northern sheadings one had only two parishes, and, consequently, the Northside would only return eight Godar to Tynwald, to correct the inequality the Southside was deprived of one member, and returned eight also, and so we get the total number of sixteen.
12. Here it may be objected that the true number of the Keys was then, as now-, twenty-four.
But why?
The before-mentioned declaration of customary law made by the Deemsters and Keys in the early years of the fifteenth century tells us why.
The Kingdom of Mann under the Norse rule was originally extended over the Southern Hebrides (N. Sudr-eyjar, L. Sodorenses, E. Sodor), from which were returned eight members to the Tynwald in Mann, the seat of government, and with the sixteen members from Mann itself, made up the number to twenty-four.
To quote from the Declaration:-
'Also we give for law, that there was never xxiiij Keys in Certainty, since they were first that were called Taxiaxi those were xxiiij free Houlders, viz :-viij in the Out Isles, and xvj in your Land of Mann, and that was in King Orreys days but since they have not been in Certainty. But if a strange point had come the which the Lieutennant will have reserved to the Tynwald twice in the Yeare, and by Leave of the Lieutennant the Deemster there to call of the best of his Councell in that Point as he thinketh to give Judgment by. And without the Lords Will none of the 24 Keys to be.'
13. Although the last clause in the above passage has a suspicious appearance, there is no reason to doubt the authenticity of the record otherwise. Putting aside the interesting questions which arise out of this much debated declaration, it is a reasonable assumption that, so far, we have found the original constituents of the Tynwald Court to be almost identical with the Icelandic Logretta.
The question arises, where in the Manx ceremony are to be found the assessors of the Logrettu-mennr, and who were they?
14. Of the persons who are summoned to sit on Tynwald Hill, the Governor and the Bishop present no difficulty.
It is further submitted that the members of the Legislative Council, before it was reformed in 1922, were, as their titles imply, simply the officers of the respective households of the heads of the State and of the Church.
The Clerk of the Rolls who kept and entered up the records of the King's Court (as he still does), the Receiver-General who collected his revenues, the Attorney-General who pleaded his causes, and watched his interests in the Law Courts, are obviously of the Lord's household.
Indeed, all these officials actually lodged in the Lord's residence at Castle Rushen till comparatively recent times, as we learn from the minute regulations specifying the number of pots of beer and pieces of candle each was to be allotted from the Castle Buttery or stores
The Archdeacon, or Bishop's eye, the Vicar-General, or Bishop's legal adviser, were obviously of the Bishop's household.
15. The Deemsters who now sit and vote with the Council were not, strictly speaking, members of the Council at all.
In early days they did not sit with the Lord and his officers, but on a seat placed apart from them, and facing the Keys. To this day they append their signatures to Statutes and Resolutions of Tynwald separately from the other members of the Council, and they are separately mentioned in the enacting part of a Manx Act of Tynwald (or Statute.).
We will discuss the interesting question of the position of Deemster in a subsequent chapter, and return to the assessors, who they are, and whether they are still to be traced in the archaic ceremony which takes place on each recurrent July 5th. To answer this question we must call to mind, who also are summoned to Tynwald, take part in the procession, and sit upon Tynwald Hill.
The High Bailiffs of the four market towns, the Mayor of Douglas, and the four sergeants of police we need not discuss. Their offices were created in and since the year 1777; the Coroners and Sumner-General have a reason to be there and specified duties to perform, as may be gathered from the ancient records.
15. There remain to be accounted for the seventeen Vicars and seventeen Captains of the parishes.
The Vicars took their origin after Christianity was introduced into the Island, probably in the latter part of the tenth century, and would, no doubt, represent the chief priest of each parish of Pagan days.
Their knowledge of law and the prestige attaching to the priesthood would to some extent invest them with the legal atributes of the Godar.
The Captains are now considered to be and are appointed as Captains of parish militia, but they have certain rights such as the summoning of a parish meeting and used till lately to administer civil affairs in their parishes, which indicates their origin not to have been exclusively of a military nature.
Now why do the Captains and Vicars accompany the Keys into the Mound and sit with them on the three terraces' There is no known reason or tradition to account for their presence; they never appear except on Tynwald Day; and they have now no public duties to perform other than those usually discharged by clergymen and captains of the parish militia. Nevertheless, they alone of all other functionaries are summoned to attend.
They have always been so summoned, and their offices have been in existence beyond legal memory.
In a ceremony of which the details were traditionary in the year 1417, and which has been kept up ever since, we must suppose that there was not only a reason for their presence, but that it was a reason connected with the constitution of the Court.
That Court we have reconstituted on the Icelandic model in every particular but one.
The sixteen Keys of Mann should by our analogy have had thirty-two assessors to advise them, sitting interspersed with them on the hill.
Are we not justified in identifying the thirty-four Vicars and Captains with these officers of old times-,
True, there are seventeen and not sixteen of each, but so, as we have seen, there should have been seventeen Keys, and the explanation of the apparent disparity (drawn from our Icelandic parallel), is equally applicable to the case in hand. It is submitted, therefore, as a conclusion prima facie justified that the Vicars and Captain are the assessors of ancient times, two for each Key or Thingsman, the priests as experts in law, and the captains of parishes as officials versed in the administration of military and civil affairs for each Godord (or parish).
16. The whole number of the Tynwald in ancient days then would be seventy-two (assuming that the out Island representatives brought their assessors), or exactly half as many as the Icelandic Logretta.
The difficulty at once arises that since the division of the Kingdom of Mann and the Isles, the eight out Islanders being lost, the Keys should, if our hypothesis be correct, consist only of sixteen members.
It must be remembered that it was distinctly contrary to the Scandinavian theory of law to have any number of judges or legislators who did not compose twelve or multiples of twelve.
Again, we learn from the answer of the Keys (above quoted) that since the days of the Scandinavian Kings who died out shortly after the separation of Mann and the Southern Hebrides, the member of the Keys ' had not been in certainty,' as we should expect.
And the practice was very loose for some time after 1417, sometimes twenty-four, sometimes thirty-six, and sometimes an undefined number meeting at Tynwald.
May we not assume that it was in accordance with firmly noted tradition that the ancient number reasserted its supremacy -- all trace of the original composition having been either lost or ignored - and the full twenty-four came to be looked upon and finally were established as the legal number of the Keys for Mann, as they had formerly been for Mann and the Sudreyar.
We now pass to the composition of the House of Keys itself.
17. Everyone has heard of the House of Keys; some people know they are composed of twenty-four elected representatives of the people of the Isle of 'Man, and compose the Lower House, the House of Commons of the Manx Legislature. Few but Manxmen, however, are aware that prior to the year 1866, when the constitution was reformed on a democratic basis, the Keys were self-elected and held their seats till death, resignation, bankruptcy, gross misconduct, or loss of the qualifying landed estate.
The method of election prior to 1866 when a vacancy occurred was for the House itself to select two persons from amongst the larger landowners of the Island, i.e., those possessing a quarterland, or intack property of an equal value, generally from the same sheading as then lacked a member, and to present both names to the Governor.
The person who had received the highest number of votes was placed first in order, and generally chosen by the Governor, unless for some special reason he preferred the other.
But apparently he was not compelled to choose either, and so far as is known the constitution made no provision for a case where he refused both names submitted.
The method of election was undoubtedly ancient, no tradition of any other method having survived in the year 1792, when the English Comissioners (headed by Mr. Grant, afterwards Sir William Grant, Master of the Rolls) held their inquiry into the constitution, government, laws, customs, and finances of the Island.
The ownership of land was so important an ingredient in a legislator that if a member parted with his landed estate, his seat could be declared vacant.
Now what do these peculiarities suggest as to the origin of the Keys as a body ?
And first, what is the meaning of the term Keys:
18. There can, I apprehend, be little doubt but that Gudbrand Vigfusson was correct in suggesting that it is simply a corruption of a Scandinavian word, formed from the verb Kjosa, meaning ' to choose, or elect.'
The title Keys then meant ' the chosen ' or ' elected ones.' The next question is why the Keys were self-elected, held their office for life, and consisted exclusively of the larger land-owners, so many for each sheading.
Turning back to the former part of the chapter, it will be recollected that we traced the similarity between the Icelandic Logretta and the Tynwald Court, so far as the latter consists of the House of Keys, and those who accompany, them to the Bill of Laws.
The Icelandic Logretta, as we have seen, was composed of Godar or priest-lords chosen by their fellows, one four each parish or Godord.
Originally chosen annually by the freemen of Iceland, but re-elected time and again according to the conservative Teutonic spirit, it is fairly clear that the annual election of the Godar became more and more a matter of form, till in effect the office of Logretta-madr, like the office of Log-sogumadr, was held for life.
Still, the right of removal if the qualification were lost, or if there had been a decree of outlawry against, or other mis-conduct had been proved in the case of, an individual Logrettu- madr continued to exist.
By a similar course of events we arrive at the self-elected, life holding Keys. Their qualifications and the circumstances rendering them liable to removal seem to be sufficient, prima facie at all events, to identify them with the original Godar, the priest-lords or chief landowners in a Godord (or parish), who were alone qualified to act as Keys or Logrettu-mennr.
19. As far as can be gathered from the headings to the various statutes, ordinances and declarations comprised in the first volume of the Acts of the Manx Legislature, commencing with a written compact between the Commissioners of the then King of Mann and the Deemsters and Keys, dated the 18th January, 1417/18, the Keys gradually began to lose, and as gradually regained, their powers and privileges and their ancient number of twenty-four.
The instrument above referred to is expressed to be an Indenture made between Thurstan de Tydesley and another, Commissioners of Lord John de Stanley King of Mann and the Isles, of the one part, and the Deemster and twenty-four Keys of Mann, of the other part.
The object of the Indenture is, in effect, to abolish the ' liberties,' by compelling the Barons (or owners of the Baronies) in certain cases, to deliver up to the King's justice malefactors who had committed a felony or treason and had fled for protec- tion into their territories, tinder the heaviest penalties in the event of refusal.
Subjects of the King of Mann were also forbidden to go into the territories of the Barons for purposes of delay under like penalties.
This was a very important act of. state affecting the lives and liberties of the population and their amenability to the King's justice.
It put an end, we may well suppose, to the right claimed by every Manxman who had committed a heinous crime to fly for safety- to a friendly Baron, place himself under the former's protection, and defy the King's ministers of the law.
Having regard to the fact that the Island had then lately been conquered by the King of England, and granted by him as a feudatory kingship ;o Sir John Stanley (see page 24), it is a proof of the vitality of the old constitution and laws at that period that Sir John did not suppress these lawless privileges by an act of power, but deemed it expedient to enter into a solemn compact with his subjects, being, as it were, mutual high contracting parties.
It is also strong evidence of the power and representative nature of the Keys that they assumed, and were regarded by the King's Commissioners as possessing, the power to enter into such a treaty on behalf of the people of the Island.
It was, indeed, in so far as it altered the law or custom, equivalent to an act of Legislature.
20. As time went on, however, and the Stanleys consolidated their power, the privileges of the Keys began to be seriously affected.
In the Declaration above recited, the Keys are expressed to state that 'without the Lord's will none of the twenty-four Keys to be.'
This is so obsequiously worded, as to give the impression that the Keys had no right to existence at all unless the King so willed it.
The suspicions character of this clause we have already touched upon.
Even if we grant that it is not a later interpolation, the Keys possibly meant only to refer to the King's power to choose, out of the names submitted, the person who should act as a Key.
This power, as we have seen, was unrestricted even in modern times, and the practice was followed up to the date the self-elected House came to an end in 1866.
Furthermore, even assuming that the declaration applied to the Keys as a body, and not to individuals, it is a remarkable instance of the survival of ancient custom to recollect that to this day, if the Keys have once adjourned sine die, they cannot meet together again for the transaction of business till formally summoned by the Governor's precept, which he is under no constitutional obligation to issue
This prerogative power was disputed by the Keys since they became an elected body on several occasions, but it has been found to be so firmly established that it is now always deemed prudent to adjourn to a fixed date so as to prevent the Governor stopping the Keys meeting together by refusing to issue a precept, a course pursued by a former Governor on one occasion for many months.
I t is therefore literally correct to state that ' without the Lord's (or Lord's Governor's) will none of the Keys to be,' in the sense that they cannot exercise any legislative function unless he chooses to call there together.
21. Frcnn the year 1417 to the year 1645 the assumption of the legislative power by the Kings of Mann, acting by themselves or through their officers, became more pronounced.
Numerous ordinances made in this manner are to be found in the Statute-book, and with these are bound up a curious medley of reports of legal proceedings for treason, military and household orders, fiscal regulations, ecclesiastical rules, and declarations of the common law by the Deemsters and Keys.
It is, however, generally agreed amongst lawyers that these ordinances, where not supported by the signatures of the Keys, are of no force in law as legislative acts, but only if and so far as they declared or are assumed to declare what the common law and practice of the Island was at the time.
Some of these ordinances are now allowed to be law through having been in so long use as to have become incorporated in the common law.
By a similar process, some provisions of the Statute of Frauds, an Act of the Imperial Parliament, although of no binding force in this Island as an act of Legislature, are now taken to have become incorporated with the Manx Common Law,
Other ordinarnces never were acquiesced in and would not now be accounted as having had the force of law, as for example, an ordinance made by the Lord's Officers in 1583 (section 6) declaring in effect that the inhabitants of the Island were but tenants of the Lord, and that their lands were his.
This situation was put an end to by the Earl of Derby (then King of Mann) in an attempt to destroy the hereditary rights of the owners of quarterlands by affecting to grant leases of such lands for three lives or twenty-one years, which led to an assertion by the Keys of their ancient position and privileges, the Earl, presumably to gain his object, acquiescing.
22. In the year 1645, an Act was passed hearing the following heading:--
AT THE TYNWALD COURT
holden at St. Johns Chappell in the parish of Kirk German in the Isle of Man, the xxiiij day of June, in the year of our Lord 1645 before the Right Honourable James Earle of Derby Lord of the said Isle, John Greenhalgh Esquire, Governor of the said Isle, with the rest of the Lords Counted there Ewan Christian Esquire and John Cannell Gentleman Deemsters there with the Representative Body of the said Countrey, vitz:-the xxiiii Keyes of the said Isle whose names are subscribed, it is ordered enacted and ordained as followeth:-
This Statute, it may be remarked in passing, in effect declared and confirmed the hereditary rights of the owners of quarterlands according to the then well understood custom of descent, a custom which I have argued bears obvious marks of similarity to the Udal law of descent (see page 11).
Since the day of the passing of that Statute the Keys have numbered twenty-four, and their legislative powers as the representatives of the inhabitants have been regularly exercised along with the Legislative Council, and the King or Lord of Mann who altogether form the Manx Parliament.
23. We return to the Constituencies, the sheadings and parishes of the Isle of Man, to represent which the Keys are chosen.
We must again resort to the Sagas for our analogies. The unit of Icelandic political life was the homestead with its Franklin (hondi) owner; its primal organization the hundred moot (Ping) ; its tie the Godord, or chieftainship.
The chief (Golli) who had led a band of kinsmen and dependents to the new land, taken a claim there, and parcelled it out freely among them, naturally became their leader, presiding as priest at the Temple feasts or the sacrifices in heathen times, acting as president and speaker of their Ping, and as their responsible representative towards the neighbouring chiefs and their clients.
He was not a feudal lord, nor a local sheriff, for any Franklin totind change his Godord when he would, and the rights of judgment by peers were in full use; moreover the office could be quitted, sold, divided, or pledged by the possessor.
A Godord, which as we have seen was a district looking to the Hofud-hof as its civil and ecclesiastical centre, became identified after the introduction of Christianity with the Hreppr or parish, which also had as its centre the parish church, correspondng to the Hof God, or head temple, as distinguished from the lesser temples, or, as we now term them, the chapels of ease.
A Hreppr was to be a track of country containing not less than twenty land owners.
After Christianity had taken firm root, the Godar ceased, of course, to exercise the priestly functions, but their importance and influence remained otherwise unimpaired for a long time.
Their unique position as chief landowners in the Godord and probably as head of the whole clan who occupied that district, and their hereditary- claims, tended to preserve their exclusive rights to election as tpembers of the Logretta, formerly based upon their possession of the semi-sacred attributes of the priesthood.
The practical incottvenicnces of an annual election coupled with the fact that such elections when in full operation were largely a platter of form, since the same persons were usually chosen to continue in office from year to year, in time caused the. right of election to become by common assent more or less in abeyance.
Whilst the strong sense of individual liberty, the force of a highly organized opinion, and above all the deeply rooted, almost slavish, regard for precedent and traditional law and custom, for long prevented any ill results arising from this form of government, nominally republican, but really (as in ancient Rome) the rule of an aristocracy- chosen from an exclusive caste.
In truth, it was the disastrous policy of the later Bishops of Iceland, whose constant efforts to set one ruling family against the other caused the weakening and eventual destruction of the Godar, that brought down on the devoted Icelanders the evils froth which they eventually suffered.
24. Returning to Mann, we find that the circumstances while differing in form were very similar in substance.
The attributes of the Keys or chosen ones, so far as usage or tradition remains, point, as we have seen, to their identification with the Godar who formed the Logretta of the Icelandic Parliament.
Whilst the strongly rooted idea of their originally elective character cropped up from time to time when entire ignorance of their early constitution reigned.
As an instance, occurring so late as the year 1,581, we find it recorded in the Insular Liber Cancellarii that, a commission having been directed by the Earl of Derby, the then Lord of the Island, to the officers spiritual and temporal and the twenty- four Keys, on their proceeding under the Commission, bishop Merick objected -
' that if the 24 and the rest be called together for the establishing a law to stand in force and bind his successors and the whole country, and not to decide a controversy, then he is of opinion that the 24 should be elected by the whole consent of the community, viz :-of every Sheading a number to say for and represent the rest.'
The record further states that ' Will. Christian and Hugh Holland Archdeacon made challenge as well to some of the spirituality as to part of the 24 elders,' and that the twenty-four say that, ' for establishing a law the country ought to give its consent for the choosing of the said twenty-four, etc' and so the Commission was stayed till his Lordship's pleasure he known.
25. Each parish was, and still is, divided on the Manorial Rolls into a certain number of landholdings bearing names mostlyof an unmistakably Norse origin.
These land divisions have been commonly called Treens, a name of unknown origin and meaning.
Each Treen contains within itself a number seldom exceeding, but often less than, four enclosed farms called quarterlands. These comprise the whole of the best arable land of the Island, and have existed within their present boundaries and of their present acreage, with triflling exceptions, from time ' whereof the memory of man runneth not to the contrary.'
The annual rent payable to the Lord is assessed and paid in respect of the quarterlands according to a valuation in full force in the year 1511, the date of the earliest entries on the lolls which have come down to us.
On each of the Treens, whose boundaries often coincide Iwith some natural division, such as a river, a glen, or a ridge, it is commonly supposed that a chapel called a Treen Chapel existed, and is still frequently found in ruins.
Minute investigations are procecding as to the authenticity, of this belief, but it has been surmised that the land divisions known as the Treens are the ancient estates of the old-time Free-holders, the persons referred to in the declaration of 1422 as 'Taxiaxi' from whom the. Keys were chosen, and that the Treen Chapels were kept up by the freeholders somewhat after the fashion of lords of the manor in England.
The similarity in the names of the persons holding land in each parish, as for example. the Corletts in Ballaugh or the Christians in Bride, or the Wattersons in Rushen, support the view that each parish or district corntained a clan of the same name and blood as the local chieftain..
If this theory be correct, the last link in our analogy is established.
We find our priest-lords or Godar in the owners of the Treens, each of which, of an average number of ten to each parish, had its temple looking to the mother temple, which would be served by the principal Godi, the chosen one, or Key, for the Godord.
These inferior Godar, then, would represent the constituencies of early times, though their choice would no doubt be influenced by their clansmen, the tenants of the quarterlands, and the cultivators of the communal strips, or rigs, or pennyworths, within the quarterland.
26. The Logretta in Iceland combined the functions of a deliberative and legislative assembly with those of a supreme court, but the executive and deliberative were separated from the judicial attributes.
The judicial attributes of the Logretta were distributed among four courts representing the four quarters of the Island, and before these quarter courts all suits brought before the All Thing relating to those quarters had to be pleaded.
The judges in these courts were named by the Godar, and they all sat in the Court of Laws. Up to the time this arrangement was adopted each priesthood had possessed a court of its own, and after that time continued to possess it, but only as a private court, something like that of a lord of the manor in England.
Prior to the year 1866 before mentioned, the House of Keys constituted the supreme Court of Appeal in all civil cases in this Island, and to its adjudication were brought appeals from petty juries, and traverse (or appeal) juries, as they were termed.
From the decision of the House lay an appeal only to the King in Council, or, formerly, to the Lord Proprietor of the Island.
Up to the year 1800 or thereabouts, the Keys also formed a component part of the Court of ' General Gaol Delivery,' as the Court of Criminal jurisdiction was and is still called.
The function of the Keys in this court was to watch the proceedings before the petty jury, and if appealed to against the verdict of the former, they exercised a power of reversing it on the ground that they (i.e. the lower jury) had ' passed contrary to their oaths and the evidence,' and as an accompaniment of a decree of reversal, the petty jury were presented to the Governor to be fined, and in some cases declared incapable of ever acting in a similar capacity again.
27. Returning again to our Icelandic model, we find that in each Thing a court was also held, probably after the meeting of Thingmen.
For the administration of justice a circle called the Dom- hringr (doom ring) was formed with hazel twigs or with upright stones, to which were attached cords called ve-bond (the consecrated or sacred cords).
Within this circle sat the judges, the people standing on the outside, and in the middle stood the Blot-steinn, a huge stone with sharp ridge, on which the backs of criminals condemned to death were broken.
Each of the three Godar of the Thing summoned twelve assessors or doomsmen to sit with him within the forensic circle, which thus formed a court of justice composed of three judges and thirty-six jurymen. (Egils Saga.)
On this Island, in addition to the Keys, there were courts held at the time of each of the four legal terms called up to a very late date ' Sheading Courts.'
In these courts the cases arising in each of the six sheadings were called over and submitted to the arbitrament of juries drawn from the particular sheading, who heard the cases and delivered their verdicts upon them in the presence of the lord and his officers, but acting by the advice and direction of the Deemster in whose jurisdiction the case arose.
In the year 1422 the existence of the Six Sheadings Courts was expressly referred to in the form of outlawry as ' Your Six Courts for your six sheadings.'
In the year 1577 it was declared as a customary law that all persons who bore 6d. rent to the Lord ought to make their appearance at every court held within the sheading wherein they dwell.
Each Sheading Court had a Moar, amongst whose duties were to prove the calling, of the person to be outlawed, and who had the sheading jury in charge
The Moars were the persons who collected the Lord's Rent from the landowners in the parishes, and there was one for each parish. They were chosen annually in rotation from the owners of the qnarterlands, of which we have already spoken.
The three Moars of each Sheading therefore may very well be identified w ith the three Godar of the Thing Courts in Iceland, who would summon to their aid thirty-six doomsmen to judge in the cases arising in the Sheading (or Thing) Courts.
The Sheading- Jurys in: "Mann, however, cannot be traced in any number exceeding twelve, being ' four Honest men from every parish,' as referred to in the Memorandum inserted in the Statute-book under date 1577.
We may here note by the way that in the same court, and very often on the same day, the Baron or Seneschal Courts were held, and deeds affecting the lands in the Island were submitted for confirmation, but it need hardly be pointed out that these courts in their later development differed in every fundamental from the Sheadings Courts proper, and were a creation of feudal times, overlaying a more ancient and interesting ceremony that was touched upon at page 15.
28. There are no traditional sites of the doom-rings in the Sheadings of this Island, but stone circles still exist and are surrounded by upright stones, some of very large size.
In the centre of some of the rings are to be found traces of a gravelled substance formed of small white stones which have proved a source of much discussion amongst the antiquaries.
The circles were long supposed to have some connexion with the Druids, but they probably have nothing whatever to do with Druidical worship.
Their identification with the doom-rings of the Scandinavians would, it is submitted, present less difficulties than those which occur to the mind of the inquirer when any other explanation of their presence and original use is elaborated.
Barrows are sometimes found near the ring. Possibly the astute Scandinavian legislators would seek to identify their l)om- hringr with some place already sacred to the Celtic inhabitants who formed the bulk of the commonalty.
29. Having now dealt with the Tynwald as a legislature and as a court of law ; with the Keys, their composition and election ; the constituencies ; and the Legislative Council ; the conclusions at which we have arrived may be compared with those of the Icelandic scholar, Gudbrund Vigfusson. He says :- ' The Manx Tynwald and the Icelandic All Moot correspond in each particular point. The Tynwald answers to the Icelandic Pingvollr; the Tynwald Hill to the Icelandic Log-berg or Log- brekka, the House of Keys to the Icelandic Logretta (Court); the chapel to the temple of heathen days.
' The 24th of June procession answers to the Icelandic Log- bergis-ganga (procession to the law rock) or Doma-ut-faersla (the opening of the courts), on the first Saturday of every Session, the distance between hill and Court being about 140 yards in each case. The path being fenced in like the Court and hill, and used for this solemn procession when the judges and officers go to and fro between them, would answer to the Icelandic Ping-vollr-tradkr (Tynwald enclosure or lane). The Manx Deemsters (Dom-stiorar, deem-steerers) answer to the Icelandic law-man or speaker. . . The Keys answer to the bench of Godes.
' The hill and the temple were the two holy spots, not the Court. . . . In days of old, hill and Court were, as it were, twins. Discussions, enactments, laws and decision of law points took place in the Court, but anything partaking of proclamation, declaration, publication, was done from the hill.
' The Court in early days was no doubt held within the temenos of a temple, as the Keys still sit in the Southern transept of the chapel of St. Johns.'
The Icelandic Alpingi was abolished (though since revived in different form) ; the Norwegian and Swedish moots lost their continuity of existence; and in no other country, that I know of, has there existed for over 1,000 years a free and independent legislature truly representative of the country, whose assent to all new laws, or alterations of old ones, required to be given in solemn form.
Who shall say, therefore, that there is not a good foundation for the Manxman's proud claim that his legislature is the oldest in the world.
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Any comments, errors or omissions gratefully received
The Editor HTML Transcription © F.Coakley , 2009 |
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